Negative liberty likely to trump positive liberty in Supreme Court
The fate of the Affordable Health Care Act comes down to two competing notions of liberty. A front page article in the NYT today put it like this:
If the administration is to prevail in the case, it must capture at least one vote beyond those of the court’s four more liberal justices, who are thought virtually certain to vote to uphold the law. The administration’s best hope is Justice Kennedy.
The point was not lost on Solicitor General Donald B. Verrilli Jr., who concluded his defense of the law at the court this week with remarks aimed squarely at Justice Kennedy. Mr. Verrilli said there was “a profound connection” between health care and liberty. “There will be millions of people with chronic conditions like diabetes and heart disease,” he said, “and as a result of the health care that they will get, they will be unshackled from the disabilities that those diseases put on them and have the opportunity to enjoy the blessings of liberty.”
Paul D. Clement, representing 26 states challenging the law, had a comeback. “I would respectfully suggest,” he said, “that it’s a very funny conception of liberty that forces somebody to purchase an insurance policy whether they want it or not.”
This is a perfect summation of the difference between the two conceptions of liberty held by Left and Right, which I describe in a footnote in chapter 8 of The Righteous Mind. Here’s a fuller explanation:
The philosopher Isaiah Berlin coined the terms “positive liberty” and “negative liberty” in 1958 as European welfare states were developing new ideas about the relationship between governments and citizens. Negative liberty refers to “the absence of obstacles which block human action.” This is the traditional understanding of liberty—the freedom to be left alone; the freedom from oppression and interference by other people. This is the kind of liberty that, when violated, elicits the psychological state called reactance, which is an angry reaction against perceived pressure or constraint. Reactance makes people do the opposite of what they were pressured to do, even if they were not inclined to act that way beforehand.
Positive liberty refers to having the power and resources to choose one’s path and fulfill one’s potential. Berlin was summarizing a trend in post-war democracies in which some philosophers and activists began to ask: What good is (negative) liberty if you are stuck in a social system that offers you few options? Proponents of positive liberty argued that governments have an obligation to remove barriers and obstacles to full political participation, and to take positive steps to enable previously oppressed groups to succeed.
As Berlin noted, the two forms of liberty sometimes clash. When governments pursue positive liberty for some citizens, it often requires violating the negative liberty of other citizens. Unfortunately, only negative liberty is connected to visceral emotions and instinctive reactions. When Martin Luther King said “One hundred years later, the life of the Negro is still sadly crippled by the manacles of segregation and the chains of discrimination,” White Americans could feel the urgency of removing the chains. But when Democrats later fought for programs to enhance the positive liberty of African Americans and other minorities – e.g., forced bussing, affirmative action, and welfare – they triggered outrage, protests, and a mass exodus of the White working class to the Republican Party.
I think the Affordable Health Care act is a perfect instantiation of the tradeoff between positive and negative liberty. We must compel some people to buy something in order to help other people live full and healthy lives. Given how much more powerful and visceral negative liberty is than positive, and given that a lot of research shows that judges are human beings — they reason much like the rest of us, following their intuitions and then searching for legal justifications — my bet is that Kennedy will vote to strike down the law, along with the four more conservative justices.
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Follow the Sacredness
Politics is so weird in part because voters are not pursuing their self-interest, they’re pursuing their group interest. And even for group interest, it’s often not about the group’s material interests, it’s about protecting their sacred totems. Circling around sacred objects helps a group cohere. So if you want to understand why we’re suddenly all talking about birth control and abortion at a time when economic matters are so much more important, follow the sacredness. I explain this in more detail in a NYT Review essay, here,
and also in a 2 minute NYT video, below:
If you want to learn more about sacred values in action, read the work of Scott Atran, e.g., here on war, and read chapters 11 and 12 of The Righteous Mind.
Why we can’t resolve to be more civil
Here’s a riotously funny clip from The Daily Show in which a journalist who heads “The Civility Project” is asked about a column she wrote calling the Tea Partiers “economic terrorists.” Isn’t that just a little bit uncivil, asks John Oliver? No, she says, as her inner press secretary (the rider) kicks into action to find justifications for the moral judgment made by her automatic intuitions (the elephant). She doesn’t realize her own flagrant hypocrisy.
The clip illustrates two of the three main principles of The Righteous Mind:
1) “Intuitions come first, strategic reasoning second. Harrop’s reasoning is so clearly devoted to justification, not truth-seeking. She even recommends just telling the Tea Partiers directly that their “name calling is not making them sound intelligent,” but doesn’t grasp the irony when Oliver says that to her directly. You can’t change people’s minds with reasons if their intuitions point the other way.
2) “Morality binds and blinds.” Harrop is such a partisan liberal that she can’t think clearly. She can’t see what’s happening, either with the Tea Partiers or during her own interview with Oliver.
This is why we at CivilPolitics.org do not endorse civility pledges. Pledges are made by riders, and they have no effect on behavior. We endorse more indirect methods and institutional changes to change the “path” that the elephant is traveling.
Moral Narratives
I was a guest on BeastTV (Daily Beast), with John Avlon (author of Wingnuts). We talked about the dueling narratives of left and right that make it easy for each side to believe weird stuff.
Read MoreOn Morning Joe
I was a guest on the MSNBC show Morning Joe (March 12).
We talked about the re-emergence of religion into the culture war as the Republicans have focused on issues such as birth control and abortion.
Here’s the clip:
What are the fairness buttons?
I just published an essay in the New York Times titled “How to Get the Rich to Share the Marbles.” The main point of the essay is that there are several fairness buttons in the human mind, but equality of outcomes is not one of them. This is why arguments about how much the “1%” have, in comparison to the “99%” don’t get much traction. Even showing graphs of rising inequality doesn’t do much for most Americans, because our moral psychology just doesn’t respond to inequality of outcomes in a vacuum. Rather, there are (at least) three fairness buttons that come into play in discussions of taxation, wealth, and inequality:
1) The “Share the Spoils” button. People feel a strong desire to share, even to share equally, when they feel that they have collaborated with others to produce the wealth. If a gross disparity arises because two people worked separately, even if they both worked equally hard and one was just plain lucky, most people don’t feel that they are entitled to a share of the more successful person’s resources. This is the focus of the article, drawing on an important study published last year in Nature by Katharina Hamann and Michael Tomasello. Tomasello is one of the heroes of chapter 9 of The Righteous Mind, for his research on how humans and only humans can do shared, joint projects like the marble sharing.
2) The “Shared Sacrifice” button. Churchill offered Britons nothing but “blood, toil, tears and sweat.” John F. Kennedy asked us all to “bear the burden of a long twilight struggle” against communism. When a leader asks everyone to sacrifice for the common good, it pushes a very powerful button, one that makes rich and poor alike willing to share. (I criticize Obama for not pushing this button in response to the economic crisis, but I should note that George Bush failed to push it in an even more golden opportunity, after 9/11. That would have been an ideal time to get our house in order, to prepare for the long and costly struggle Bush was about to take us on.)
3) The “Procedural Fairness” button. People don’t just care about whether they got a fair slice of the pie. That’s “distributive fairness” (which depends critically on whether they collaborated to make the pie, see button #1). They also care a great deal about whether open, honest, and impartial procedures were used to decide who got what. This is the main problem with fairness in America, in my opinion. This is why I approvingly quoted Sarah Palin’s condemnation of “crony capitalism.”
If the Democrats are going to campaign this year on fairness, they would do well to know where the psychological buttons are, and to stop assuming that most people are concerned by gross inequalities of outcome by themselves. In my research at Yourmorals.org, my colleagues and I find that it’s only people who are already on the far left who agree with the statement “ideally, everyone in society would end up with the same amount of money.”
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